Bonner v. Via Rail Canada Inc., 2009 FC 857

• Judge: Martineau, J.
• Court: Federal Court (Canada)
• Case Date: April 22, 2009
• Jurisdiction: Canada (Federal)
• Citations: 2009 FC 857;(2009), 354 F.T.R. 70 (FC)

Bonner v. Via Rail Can. Inc. (2009), 354 F.T.R. 70 (FC)

MLB headnote and full text

Temp. Cite: [2009] F.T.R. TBEd. OC.013

Brenda Bonner (applicant) v. Via Rail Canada Inc. (respondent) and Commissioner of Official Languages of Canada (intervenor)

(T-1167-02; 2009 FC 857)

Indexed As: Bonner v. Via Rail Canada Inc.

Federal Court

Martineau, J.

September 9, 2009.

Summary:

The applicant (Bonner) was a long term on-board service employee of Via Rail Canada Inc. She applied under s. 77 of the Official Languages Act (Can.) (OLA), to challenge the legality of VIA Rail's bilingual requirements for the Service Manager (SM) and Assistant Service Coordinator (ASC) positions on remote train routes in British Columbia that had not been designated as bilingual by the Treasury Board Secretariat (TBS).

The Federal Court dismissed the application, holding that the bilingual requirements were objectively justified under s. 91 of the OLA, notwithstanding that the train routes had not been designated as bilingual by the TBS. Costs however were awarded to the applicant pursuant to s. 81 of the Official Languages Act because this case raised an important new principle in relation to the OLA.

Civil Rights - Topic 2869

Language - Right to use French or English in dealings with or within the public service or institutions, etc. - Staffing actions (incl. job selection process) - Section 91 of the Official Languages Act (Can.) (OLA) provided that "Nothing in Part IV or V [of the OLA] authorizes the application of official language requirements to a particular staffing action unless those requirements are objectively required to perform the functions for which the staffing action is undertaken" - The Federal Court (Martineau, J.) stated that "As I read section 91, a federal institution cannot, in the guise of purportedly giving effect to its obligations under Part IV or V of the OLA, set language requirements that are not objectively related to the provision of bilingual services in the particular setting where those functions are performed by the employee" - See paragraphs 79 and 80.

Civil Rights - Topic 2869

Language - Right to use French or English in dealings with or within the public service or institutions, etc. - Staffing actions (incl. job selection process) - The applicant (Bonner) was a long term on-board service employee of Via Rail Canada Inc. based in Vancouver - She applied under s. 77 of the Official Languages Act (Can.) (OLA), to challenge the legality of VIA Rail's bilingual requirements for the Service Manager (SM) and Assistant Service Coordinator (ASC) positions on remote train routes that had not been designated as bilingual by the Treasury Board Secretariat (TBS) (the challenged staffing decisions) - VIA maintained that its language requirements for the SM and ASC positions were objectively justified within the meaning of s. 91 of the OLA - The Federal Court dismissed the application - The court stated that based on the evidence in the record, the bilingual requirements for the SM and ASC positions were objectively required under s. 91 in order for VIA to perform the functions for which the challenged staffing actions were taken - The fact the routes were not designated as bilingual by TBS was not conclusive evidence establishing that the bilingual requirements were not objectively justified - The court stated that given the heightened safety considerations associated with VIA's operations, as well as its mandate as an independent Crown corporation and the diverse national and international clientele that it served, it was not unreasonable, in the court's view for VIA to designate on its trains running across the country certain key positions as requiring bilingual skills - The duties and responsibilities of the incumbents in the challenged SM and ASC positions in the Western region, and elsewhere in Canada, justified a bilingual designation - Accordingly, s. 91 of the OLA was not breached by VIA when these positions were staffed by on-board service employees more junior than the applicant, but who possessed the requisite level of bilingual skills under the on-board collective agreement - See paragraphs 73 to 115.

Civil Rights - Topic 2962

Language - Complaints - Jurisdiction - The applicant (Bonner) was a long term on-board service employee of Via Rail Canada Inc. based in Vancouver - She applied under s. 77 of the Official Languages Act (Can.) (OLA), to challenge the legality of VIA Rail's bilingual requirements for the Service Manager (SM) and Assistant Service Coordinator (ASC) positions on remote train routes that had not been designated as bilingual by the Treasury Board Secretariat (TBS) (the challenged staffing decisions) - VIA argued that the application should be dismissed because the matter fell within the exclusive jurisdiction of the grievance arbitrator under the on-board collective agreement - The Federal Court held that it had jurisdiction under s. 77(1) of the OLA to hear the application - In reaching its decision, the court stated that "... in view of competing statutory grants of jurisdiction under the OLA and the Labour Code, and given the complexity of this matter as well as the further implications of this court's ruling on its own jurisdiction, we shall refrain from hastily and mechanically applying the exclusive jurisdiction model to the challenged staffing actions ... and proceed to the two-step analytical approach developed by the Supreme Court in St. Anne Nackawic Pulp and Paper Co. v. Canadian Paper Workers Union, Local 219 ..." as refined and reaffimed in subsequent Supreme Court jurisprudence - See paragraphs 51 to 53.

Civil Rights - Topic 2971

Language - Complaints - Costs (incl. costs of court proceedings) - The applicant (Bonner) was a long term on-board service employee of Via Rail Canada Inc. based in Vancouver - She applied under s. 77 of the Official Languages Act (Can.) (OLA), to challenge the legality of VIA Rail's bilingual requirements for the Service Manager (SM) and Assistant Service Coordinator (ASC) positions on remote train routes that had not been designated as bilingual by the Treasury Board Secretariat (TBS) (the challenged staffing decisions) - VIA maintained that its language requirements for the SM and ASC positions were objectively justified within the meaning of s. 91 of the OLA - The Federal Court dismissed the application - The court stated that based on the evidence in the record, the bilingual requirements for the SM and ASC positions were objectively required under s. 91 in order for VIA to perform the functions for which the challenged staffing actions were taken - The court exercised its discretion under s. 81 of the OLA and awarded costs to the applicant ($2000 lump sum), notwithstanding her lack of success, where the case raised an important new principle in relation to the OLA - The court noted that the application raised the complex interplay between the various parts of the OLA and some of its key provisions - The clarification of the scope of those provisions in the context of the challenged staffing actions went far beyond the immediate interests of the parties involved in this litigation - This case shed additional light on general guiding principles governing the assessment of reasonableness of bilingual requirements in cases where a federal institution provides services to the traveling public - See paragraphs 129 to 131.

Cases Noticed:

VIA Rail Canada Inc., Re (1998), 45 C.L.R.B.R.(2d) 150, refd to. [para. 20].

VIA Rail Canada Inc. v. Cairns et al., [2001] 4 F.C. 139; 270 N.R. 237 (F.C.A.), leave to appeal refused (2001), 285 N.R. 198 (S.C.C.), refd to. [para. 20].

Cairns, Re, [2003] C.I.R.B. No. 230, refd to. [para. 20].

VIA Rail Canada Inc. v. Cairns et al., [2005] 1 F.C.R. 205; 321 N.R. 201; 241 D.L.R.(4th) 700 (F.C.A.), leave to appeal refused (2005), 336 N.R. 394 (S.C.C.), refd to. [para. 20].

Marchessault v. Canada Post Corp. (2003), 315 N.R. 111; 2003 FCA 436, refd to. [para. 38].

Norton v. Via Rail Canada Inc. - see Bonner et al. v. VIA Rail Canada Inc. et al.

Bonner et al. v. VIA Rail Canada Inc. et al. (2005), 337 N.R. 138; 2005 FCA 205, leave to appeal refused (2005), 349 N.R. 199 (S.C.C.), refd to. [para. 52].

Morin - see Commission des droits de la personne et des droits de la jeunesse (Que.) v. Quebec (Attorney General) et al.

Commission des droits de la personne et des droits de la jeunesse (Que.) v. Quebec (Attorney General) et al., [2004] 2 S.C.R. 185; 321 N.R. 290, refd to. [para. 56].

St. Anne Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219, [1986] 1 S.C.R. 704; 68 N.R. 112; 73 N.B.R.(2d) 236; 184 A.P.R. 236, refd to. [para. 56].

Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; 183 N.R. 241; 82 O.A.C. 321, refd to. [para. 56].

Regina Police Association Inc. and Shotton v. Board of Police Commissioners of Regina, [2000] 1 S.C.R. 360; 251 N.R. 16; 189 Sask.R. 23; 216 W.A.C. 23, refd to. [para. 56].

Bisaillon v. Concordia University, [2006] 1 S.C.R. 666; 348 N.R. 201, refd to. [para. 56].

Canada (Attorney General) v. Viola et al., [1991] 1 F.C. 373; 123 N.R. 83 (F.C.A.), refd to. [para. 62].

R. v. Beaulac (J.V.), [1999] 1 S.C.R. 768; 238 N.R. 131; 121 B.C.A.C. 227; 198 W.A.C. 227, refd to. [para. 62].

Forum des maires de la Péninsule acadienne v. Canadian Food Inspection Agency - see Forum des maires de la Péninsule accadienne v. Agence canadienne d'inspection des aliments.

Forum des maires de la Péninsule acadienne v. Agence canadienne d'inspection des aliments (2004), 324 N.R. 314; 2004 FCA 263, refd to. [para. 62].

Desrochers et al. v. Industry Canada et al., [2009] 1 S.C.R. 194; 384 N.R. 50, refd to. [para. 62].

Professional Institute of the Public Service v. Canada, [1993] 2 F.C. 90; 60 F.T.R. 194 (T.D.), refd to. [para. 64].

Côté v. Canada (1994), 78 F.T.R. 65 (T.D.), refd to. [para. 64].

Canada (Procureur général) v. Asselin et al. (1995), 100 F.T.R. 309 (T.D.), refd to. [para. 64].

Rogers v. Canada (Minister of National Defence) (2001), 201 F.T.R. 41 (T.D.), refd to. [para. 64].

Rogers v. Correctional Service Canada, [2001] 2 F.C. 586; 199 F.T.R. 196 (T.D.), refd to. [para. 64].

Marchessault v. Canada Post Corp. (2002), 230 F.T.R. 84; 2002 FCT 1202, refd to. [para. 64].

Noël v. Société d'énergie de la Baie James, [2001] 2 S.C.R. 207; 271 N.R. 304, refd to. [para. 65].

Social Services Administration Board (Parry Sound District) v. Ontario Public Service Employees Union, Local 324 et al., [2003] 2 S.C.R. 157; 308 N.R. 271; 177 O.A.C. 235, refd to. [para. 67].

Alberta Union of Provincial Employees et al. v. Lethbridge Community College, [2004] 1 S.C.R. 727; 319 N.R. 201; 348 A.R. 1; 321 W.A.C. 1, refd to. [para. 67].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 71].

Thibodeau v. Air Canada et al. (2007), 375 N.R. 195; 2007 FCA 115, refd to. [para. 78].

Council of Canadians with Disabilities v. VIA Rail Canada Inc. - see VIA Rail Canada Inc. v. Canadian Transportation Agency et al.

VIA Rail Canada Inc. v. Canadian Transportation Agency et al. (2007), 360 N.R. 1; 2007 SCC 15, refd to. [para. 105].

Ayangma v. Canada (2002), 221 F.T.R. 81 (T.D.), affd. (2003), 303 N.R. 92; 2003 FCA 149, refd to. [para. 118].

Sherman v. Minister of National Revenue (2003), 304 N.R. 227; 2003 FCA 202, refd to. [para. 131].

Rahman v. Canada (Minister of Citizenship and Immigration) (2002), 216 F.T.R. 263; 2002 FCT 137, refd to. [para. 131].

Statutes Noticed:

Official Languages Act, R.S.C. 1985 (4th Supp.), c. 31, sect. 77 [para. 38]; sect. 81 [para. 129]; sect. 91 [para. 79].

Authors and Works Noticed:

Canada, Minister of Public Works and Government Services, Commissioner of Official Languages, Language Rights 1999-2000 (2001), generally [para. 16].

Canada, Royal Commission Report on Bilingualism and Biculturalism (Laurendeau-Dunton Commission) (1967), Book 1, c. V [para. 100].

Canada, By Train, Ties that Bind: A Brief History of Railways in Canada, generally [para. 102].

Laurendeau-Dunton Commission - see Canada, Royal Commission Report on Bilingualism and Biculturalism.

Vaz, Nicole, and Foucher, Pierre, Language Rights in Canada (2nd Ed. 2004), c. 4 [para. 77].

Counsel:

Brenda Bonner, on her own behalf;

Rachel Ravary and André Baril, for the respondent;

Pascale Giguère and Kevin Shaar, for the intervenor.

Solicitors of Record:

McCarthy Tétrault, LLP, Montreal, Quebec, for the respondent;

Office of the Commissioner of Official Languages, Legal Services, Ottawa, Ontario, for the intervenor.

This application was heard in Winnipeg, Manitoba, on April 22, 2009, by Martineau, J., of the Federal Court, who delivered the following decision on September 9, 2009.